EarthLink: FBI Won't Monitor Our Network

FRAMINGHAM (07/17/2000) - EarthLink Inc., an Atlanta-based Internet service provider, says it has reached an agreement with the U.S. Federal Bureau of Investigation in which the agency has agreed not to install its Carnivore Internet surveillance system on EarthLink's network.

EarthLink was involved in a court battle with the FBI earlier this year in which it resisted efforts by the agency to install Carnivore under a court order to wiretap the communications of a suspect in a criminal case.

A federal magistrate ruled against the company, forcing it to allow the FBI to access its network traffic. But Kurt Rahn, senior public relations manager for EarthLink, says the company reached an agreement with the FBI after expressing concerns about customer privacy and disruption of its service as a result of the surveillance.

"We didn't feel comfortable having something on our network that we had no control over and for which we had no knowledge of what information was being gathered," said Rahn. '"Who knows our network better than us? If we have to do it, we would rather have control over this sort of thing. Our members know that their privacy is safe and the FBI gets what they need to do their job."

FBI spokesperson Paul Bresson said he was not familiar with the terms of the EarthLink agreement or whether other Internet service providers would be able to strike similar deals. He said he couldn't comment on what form of oversight the Internet service provider would be under to make sure it conformed correctly with the court order.

The existence of the Carnivore system was revealed when EarthLink's lawyer, Robert Corn-Revere, testified in front of the House Judiciary Committee in April expressing concerns about the Carnivore system. Corn-Revere said EarthLink was concerned that the FBI would have the ability to monitor all of an Internet service provider's network traffic and get access to e-mail, IP addresses and other electronic information.

The act grants Americans access to a broad range of information held by the government; but, according to the ACLU, it has never been used to access computer source code. The FBI insists that its online surveillance systems monitor only the electronic communications of a person named in a court order.

But skeptical civil-rights watchdogs said they need information to determine how the software operates.

"Right now, the FBI is running this software out of a black box," said ACLU Associate Director Barry Steinhardt. "The FBI is saying, 'Trust us, we are not violating anyone's privacy.' With all due respect, we'd like to determine that for ourselves."

"It is less intrusive than normal wiretapping," countered FBI spokesperson Bill Carter. "This focuses only on those e-mails that we have a court order to intercept and nothing else."

While the ACLU says its FOIA request for program source code, filed last Friday, is without precedent, Steinhardt noted that the action is supported by two federal appeals court rulings that determined computer code is a form of speech.

"Our [FOIA] section will review the legality of what can or cannot be released," said Carter. He confirmed that the Carnivore system is a Windows 2000 application with custom software that plugs into a network hub to monitor traffic in a passive listening mode. If the traffic meets a specific filtering criteria, the information is stored on an Iomega Jaz drive.

Rahn said the court order prohibited EarthLink from disclosing the surveillance to its customers or detailing the nature of the network disruption that it caused. "The last thing that we want to do is disrupt anyone's business, and if that has happened, this is something that we will look at and try to resolve," said Carter.

The FBI has 20 business days to respond to the FOIA request, and the ACLU is seeking a response on an expedited basis "because this information [is] related to impending policy decisions to which informed members of the public might contribute."

In a July 11 letter to members of Congress, the ACLU raised concerns that FBI Internet wiretapping systems were capable of monitoring all the traffic of an Internet service provider on which they were attached. In its letter, the ACLU said the unchecked uses of this technology "cry out for congressional attention if we are to preserve Fourth Amendment rights in the digital age."

The House Judiciary Subcommittee on the Constitution has scheduled a hearing on the matter for Monday, July 24, and the ACLU has been asked to submit testimony to the committee.

House Majority leader Dick Armey issued a statement last week calling on Attorney General Jane Reno and FBI Director Louis Freeh to "stop using this cybersnooping system until Fourth Amendment concerns are adequately addressed."

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